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Kroger v. Crime

From Mafia bosses to Enron executives, John Kroger specializes in bringing criminals to justice.

by Dan Sadowsky

John Kroger is not at liberty to disclose every detail of his most memorable lunch date.

The 40-year-old law professor can tell you it took place in a shopping mall food court in 1998, that he ordered a chicken sandwich, and that he flew from New York for the occasion. But because he dined with a former mob hit man in the witness protection program, he can’t reveal the name of the “midsized American city” where they ate.

Kroger, a tall Houston native who joined the Lewis & Clark faculty in 2002, says the meal forever changed his assumptions about who might be munching at the mall. It also yielded information that helped him win his first conviction of a big-time New York Mafia boss and a special commendation from then–Attorney General Janet Reno.

In his itinerant career, Kroger has intersected with history’s defining moments like a modern-day Forrest Gump. During the last 15 years, Kroger filled key roles on Bill Clinton’s first presidential campaign team, cracked down on resurgent Big Apple wiseguys, participated in the post-9/11 search for domestic terror cells, and indicted more than a half dozen Enron executives involved in the energy company’s titanic fall. Today he’s usually in his office finishing up a forthcoming book–a “visceral” account of life as a federal prosecutor–or in the classroom helping students appreciate the ethical dimensions of lawyering.

Contemplating ethical principles and practices is a central theme in Kroger’s life. A former Yale philosophy major, he’s read hundreds of biographies for moral insights and once took a rare sabbatical from the U.S. Attorney’s office to ponder the deeper meaning of his work. “John is someone who is constantly assessing his own behavior,” says longtime friend Jan Mieszkowski. It is a trait Kroger hopes his students will adopt as lawyers.

“Criminal law is a tough field, one where lawyers on both sides basically fight over whether someone should be put in a cage,” Kroger says. “It’s ethically complex, and one of the goals of legal education is not just to learn a bunch of rules, but to think about the ethical issues people face every day.”

An Ethical Education

Kroger dates his interest in ethics to his days at Yale, where he enrolled at age 20 after three years in the Marines. From the first day of boot camp, through his training in Recon, an elite special-operations unit based in Southern California, the Marines instilled a set of values wholly different from the one he’d acquired growing up. As a result, Kroger says, “I was left without a clear sense of what to think. Studying philosophy was a useful tool to figure out what I believed.”

Mieszkowski, a Yale classmate, says Kroger gained a reputation among peers as an unabashed intellectual who enjoyed lively discussions among friends. “John liked debating philosophical questions–egalitarianism, distributive justice, and so on,” says Mieszkowski, who today teaches German and humanities at Reed College. “People who knew him assumed he’d either become a philosophy professor or run for Congress.”

Kroger did depart for Washington after graduating with bachelor’s and master’s degrees in 1990. He landed jobs answering constituent mail for Chuck Schumer, representative from Brooklyn, and devising economic and education policy for Speaker of the House Tom Foley, both Democrats. In 1991, he joined Bill Clinton’s fledgling presidential campaign as one of its first Washington hires, tasked first with drafting policy papers and assembling Clinton’s daily briefing books and later with preparing running mate Al Gore for his debate with Vice President Dan Quayle. “It was incredibly exciting,” Kroger recalls. “I had a front-row seat for history.”

After short stints working on Clinton’s transition team and as a policy advisor in the U.S. Treasury Department, Kroger left Washington to enroll in Harvard Law School. “I wanted a job in the public sector with measurable, clear results, where I could feel at the end of the day I had accomplished something for other people,” he says, and most of the people he knew with jobs that fit the bill were lawyers.

On the leafy Cambridge campus, he gravitated toward courses on legal history and law’s philosophical underpinnings. But in downtown Boston, where he spent the summer after his first year at the U.S. Attorney’s office, he was drawn toward the seamy underworld of organized crime.

Federal prosecutors in Boston had indicted a dozen Irish mobsters for a high-profile string of unsolved murders and drug-related offenses dating back nearly two decades. Kroger was fascinated by the work, and felt comfortable with the moral aspects of being a prosecutor. “Most lawyers have a duty to zealously protect their clients, no matter what they have done. Prosecutors have the duty of justice, not zealousness. We’re not trying to win, we’re trying to get the right result. As a matter of personal ethics, that just felt right.”

Prosecuting Mobsters in Brooklyn

After graduating from Harvard magna cum laude in 1996, Kroger clerked one year for a federal appellate court judge before joining the U.S. Attorney’s office in Brooklyn. Within a year, he’d convicted Mafia captain Gregory Scarpa Jr. for racketeering and multiple homicides after a four-week trial, the start of an enviable record of courtroom success against drug kingpins and Mafia dons.

Fellow prosecutor Kelly Moore says she and her colleagues were most impressed with Kroger’s courtroom performances, à la Jimmy Stewart. “Where many of us might stand behind the podium, stiffly and methodically reciting the facts, in his opening John is walking back and forth, he’s got his hand in his pocket and he’s laying out a big Mafia case in this down-to-earth, folksy way. And he ends it with, ‘My name is John Kroger, and I represent the United States of America in this courtroom.’”

“It was sort of different for Brooklyn,” Moore adds, “but effective for John.”

After working 70- to 80-hour weeks for three years, Kroger approached supervisors with what Moore calls an unheard-of request. He wanted three months off, partly to bicycle from New York to Oregon. “I wanted to take some time and think about my work,” he explains. “Once you’ve been a prosecutor for a while, it raises as many questions as it answers.”

That his request was granted signaled Kroger’s status as a rising star. This was further affirmed when, shortly after his return, he was tapped to prosecute Alphonse Persico, boss of the Colombo organized crime family, on racketeering and money-laundering charges.

“It was a huge case,” recalls Moore. When Persico agreed to plead guilty in return for a 13-year prison sentence in December 2001, she says, “Everyone thought John carried the day.”

By then, however, the 9/11 attacks had already changed Kroger’s career. The day after the attacks, he reported to a round-the-clock command center in Manhattan, where he helped FBI agents chase down leads by providing search warrants and subpoenas to investigate potential terrorist cells. After that experience, he decided not to continue with Mafia work, but to pursue teaching instead. “I had great cases very early in my career. What I wanted was a chance to think about criminal law, having practiced it so intensely.”

Called to Duty

He chose Lewis & Clark after a visit during which he fell in love with Oregon, the woodsy campus, and the law school’s collegial, student-focused atmosphere. But he had taught only one semester of criminal procedure before he was asked to join the Enron Task Force and help investigate what at the time was the biggest corporate bankruptcy in U.S. history.

For a little over a year, he led the inquiry into Enron’s broadband business–whose reported earnings on a future video-on-demand service, famously dubbed “Project Braveheart,” contributed to the company’s inflated stock price. FBI Special Agent Jeff Jensen says Kroger set an aggressive, hard-charging tone. “Often prosecutors want agents to do a lot of work for them, to summarize and filter a lot of the information. John wasn’t the kind of guy who wanted the CliffsNotes version. He’d say, ‘You’ve got 10 boxes? Well, send me 10 boxes.’”

Task force members spent much of their time flying to dozens of cities to interview former Enron employees and poring over e-mails and other documents in a nondescript Houston office building. Kroger was appalled by the extent of Enron’s chicanery.

“As a prosecutor, you’re used to being lied to, but this was eye-opening in that we were dealing with massive deception just because people wanted to jack up stock prices,” Kroger says. “Rationally, I have much more in common with an Enron executive than with a Mafia hit man, and yet I seemed to understand and communicate with the Mafia members better. I understood precisely why they went into the line of work they did, and why they did what they did to stay there.”

Returning to School

In the end, Kroger and his team won indictments against seven men, including Ken Rice and Kevin Hannon, Enron’s top two broadband executives. They pleaded guilty in 2004 and became government witnesses, helping to secure fraud convictions against Enron chairman Kenneth Lay and CEO Jeffrey Skilling.

Kroger calls the Enron prosecution a success–but predicts that it will be remembered as a high point in the punishment of corporate malfeasance. “If you look at the history of business crime, there tends to be a wave of crime and a wave of regulatory reaction,” he says. “After time, we all grow complacent, and then we head into another wave of scandals. I don’t think we’ve ever found a way to address that boom-bust approach to corporate fraud.”

Kroger acknowledges he might be on a pendulum of his own. He credits the Marines for drilling into him a commitment to public service, and says he can envision a career that swings between teaching and assignments like Enron. Professor Stephen Kanter, former dean, expects the law school to provide Kroger “plenty of room to pursue many opportunities.”

For now, Kroger is fulfilling his public duty teaching criminal law, criminal procedure, and jurisprudence. He has already won the student-awarded Leo Levenson prize for best teacher.

“His teaching style is a little less traditional than many professors, and more grounded in real-world applications,” says former student Patrick Flanagan J.D. ’04, now a deputy district attorney in Clackamas County. Flanagan adds that Kroger defied the stereotype of the imperious, unbounded prosecutor by stressing the need to be “cautious and cognizant” of prosecutorial limits and forcing students to consider the moral aspects of a case.

Kroger acknowledges that, having spent so much time around criminals who don’t share his scruples, he finds in the classroom a welcome opportunity to promote his own standards. “It is very rewarding to me,” he says, “to convey the right set of professional values to the next generation of lawyers.”